Purple Heart quest adds to dispute over what constitutes terrorism

By Roxana Tiron and Timothy R. Homan

Thursday, July 11, 2013

WASHINGTON -- For Army Staff Sgt. Shawn Manning, Nov. 5, 2009, was a routine day at Fort Hood, Texas, waiting for a health checkup before his scheduled deployment to Afghanistan. Suddenly, he heard someone yell "Allahu akbar" -- Arabic for "God is great" -- before the first of six bullets slammed into his chest, piercing his right lung and liver.

Almost four years later, Manning is engaged in another fight -- for the military's Purple Heart, bestowed on soldiers injured in battle. The court-martial of Major Nidal Hasan, the Army psychiatrist charged with 13 counts of premeditated murder and 32 counts of attempted murder, is stoking calls to label the shooting rampage an act of terrorism and to award Purple Hearts, which carry federal benefits.

"This wasn't a random act of violence where a guy was having a bad day," Manning, 37, said in a phone interview.

The dispute over the Purple Hearts is part of a broader national debate over what constitutes a battleground in an age when terrorism can inflict casualties at home.

With jury selection under way this week in the trial of Hasan, an American-born Muslim, U.S. House Republicans and the victims' families argue that the Fort Hood attack was the first terrorist incident on U.S. soil since Sept. 11, 2001.

The Obama administration characterizes the attack as workplace violence and says branding it terrorism would jeopardize Hasan's right to a fair trial. Other critics say giving the decoration to the Fort Hood victims could open up future claims for the award and, in the Pentagon's view, change the criteria for the honor.

It's the latest skirmish between the White House and Republicans over how to handle prosecutions of suspected terrorists. In 2011, under political pressure, the administration rescinded its decision to try accused Sept. 11 mastermind Khalid Sheikh Mohammed in federal court in New York; a military tribunal is hearing his case in Guantanamo Bay, Cuba.

The Republican-led House has passed legislation that would force the Pentagon to award the Fort Hood victims the Purple Heart and the government benefits that come with it. A similar provision, included in last year's defense measure, was removed during negotiations with the Democratic-controlled Senate.

Purple Heart recipients can qualify for reduced medical costs, preferential treatment for many state and federal government jobs, tuition waivers at some universities and special license plates. Family members can receive some of the benefits.

The families of the dead and survivors of the shootings have sued the government for those benefits, in addition to seeking damages from the government and Hasan.

Pentagon officials "are twisting themselves into a pretzel" to avoid saying the attack was terrorism, said Neal Sher, an attorney for the plaintiffs in a civil suit against the government and Hasan.

Survivors of the shootings have had to deal with numerous injuries and trauma. Manning, a medic who had served two tours in Iraq unscathed, knew he had little time after being shot because his lung started to collapse and was filling with blood. He played dead to escape more bullets.

Surgeons had to remove Manning's intestines and operate to treat a subsequent infection from a staple in his belly. Bullets remain behind his left kidney and in his right thigh, according to the legal filing against the government and Hasan.

At the time of the attack, Manning was an activated reservist, making much less than he would have made as a federal civilian employee. Because the shooting was classified as workplace violence, Manning has lost about $40,000 in compensation and "significant" retirement benefits, according to the legal filing.

Pvt. Justin Johnson was shot in the back and foot, puncturing his lungs, fracturing his ribs and breaking bones in his foot. A bullet is still lodged in his chest, according to the filing.

Hasan, representing himself against charges of premeditated murder and attempted murder, told the military judge, Col. Tara Osborn, that he shot the soldiers because they posed an immediate threat to Taliban leaders in Afghanistan.

The so-called "defense of others" strategy would have required him to show that killing was necessary to prevent the immediate harm or death of others. With Hasan potentially facing the death penalty or life without parole if convicted, Osborn barred him from using that defense.

"The accused is innocent until proven guilty" in all uniformed code of military justice cases, Lt. Col. Tom Crosson, a Pentagon spokesman, said in an emailed statement. Citing "the integrity of the ongoing court-martial proceedings," he declined to characterize the incident.

Service members killed or hurt when a hijacked airliner struck the Pentagon on Sept. 11 were awarded the Purple Heart. Then-Secretary of Defense Donald Rumsfeld called it "the first attack on our capital by a foreign enemy since the War of 1812."

Colby Vokey, a Dallas-area retired Marine Corps lieutenant colonel now in private legal practice, said Hasan doesn't qualify as an enemy combatant because he's a U.S. soldier.

"There are soldiers and Marines killed in dangerous situations, yet no Purple Heart is awarded," Vokey said in an interview. "It has to be a result of enemy action."

The Pentagon would be taking on a "totally unnecessary" burden to show that the Fort Hood attack was an act of terrorism, said Morris Davis, chief prosecutor for the military commission at Guantanamo Bay from 2005 to 2007 who now teaches at Howard University School of Law in Washington.

While labeling it terrorism "may have some political appeal," he said, from a legal perspective it makes more sense to treat it as a "straight-up traditional murder charge."

In the federal court filing, Sher's clients claim that government agencies, including the Federal Bureau of Investigation, had indications that Hasan possessed "strongly held jihadi ideology and religious motives for the Fort Hood terror attack."

They allege that Hasan self-identified as a "soldier of Allah," that he openly supported suicide attacks against non- Muslims, and received religious and operational inspiration from Anwar Al-Awlaki, an American citizen and al-Qaida propagandist who was killed by a U.S. drone strike in Yemen in 2011.

"This was a terrorist attack against American soldiers and this guy should have been tried a long time ago," said Rep. Mike Conaway, R-Texas, who sits on the House Armed Services Committee.

The House defense authorization bill for fiscal 2014, H.R. 1960, which passed 315-108 on June 14, would require the Defense Department to award Purple Hearts to all service members killed or wounded in the Fort Hood shootings.

The White House objected to the proposal, saying in a June 11 statement: "This provision is inconsistent with the award criteria for the Purple Heart." The companion Senate measure, approved 23-3 by the Armed Services Committee on June 13, is silent on the matter.

Still, negotiations over the provision may be different this time, said a Senate aide who asked not to be named because no official decisions have been made. Senate Republicans are closely watching Hasan's court-martial and may press for the award depending on the outcome, the aide said.

Manning, who tried to take cover behind a desk during the shooting, has begun a new chapter in his life. After almost three years of being unable to work, he's now a mental health counselor at Fort Lewis in Washington State.

He said he thinks about the shooting every day, and crowds bother him so he no longer socializes outside his home.